Cotten v. Stephens-Director TDCJ-CID

Filing 22

OPINION AND ORDER: For the reasons discussed, the Court DENIES Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and DENIES a certificate of appealability. (Ordered by Senior Judge Terry R. Means on 1/11/2017) (tln)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
MATTHEW COTTEN,
Petitioner,
v.
LORIE DAVIS, Director,1
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.

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Civil Action No. 4:15-CV-330-Y
(Consolidated with Nos.
4:15-CV-698-Y, 4:15-CV-723-Y,
4:15-724-Y & 4:15-CV-725-Y)

OPINION AND ORDER
Before the Court is a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 filed by petitioner, Matthew Cotten,
a state prisoner, against Lorie Davis, director of the Texas
Department of Criminal Justice, Correctional Institutions Division,
Respondent.
After having considered the pleadings and relief sought by
Petitioner, the Court has concluded that the petition should be
denied.
I. FACTUAL AND PROCEDURAL HISTORY
In February 2011, in five separate indictments, Petitioner was
charged in the 372nd Judicial District Court, Tarrant County,
Texas, with two counts of forgery, one count of possession of less
than one gram of methamphetamine, one count of fraud, and one count

1

Effective May 4, 2016, Lorie Davis replaced William Stephens as director
of the Correctional Institutions Division of the Texas Department of Criminal
Justice. Pursuant to Federal Rule of Civil Procedure 25(d), Davis is
automatically substituted as the party of record.

of unlawful possession of a firearm by a felon.2 Each indictment
also

included

the

same

habitual-offender

notice

alleging

two

sequential felony convictions. On July 31, 2012, a hearing was held
on Petitioner’s motion to suppress, in which he challenged the
admissibility

of

two

recorded

statements

he

made

to

law

enforcement. After hearing testimony, the trial court denied the
motion, and Petitioner entered open pleas of guilty to all five
offenses, reserving his right to appeal the denial of the motion to
suppress. A presentence investigation report was ordered, and
Petitioner’s sentencing was later scheduled for November 30, 2012,
at which the trial court assessed his punishment at twenty years’
confinement on the drug charge and thirty years’ confinement on the
remaining

four

charges,

the

sentences

to

run

concurrently.

Petitioner appealed the trial court’s order denying his motion to
suppress, but the Eighth District Court of Appeals of Texas
affirmed the trial court’s order and the Texas Court of Criminal
Appeals refused petitioner’s petition for discretionary review.
(Op., ECF No. 10-7.) Petitioner also sought state postconviction
habeas relief challenging the denial of his motion to suppress by
filing five state habeas applications, one for each conviction,
which were ultimately denied by the Texas Court of Criminal Appeals

2
Trial Court Case Nos. 1222336D, 1227111D, 1227021D, 1227020D, and 1227019D
(State Habeas R., WR-82,830-01, 56, ECF No. 10-13; State Habeas R., WR-82,830-02,
56, ECF No. 10-16; State Habeas R., WR-82,830-03, 56, ECF No. 10-19; State Habeas
R., WR-82,830-04, 56, ECF No. 10-22; State Habeas R., WR-82,830-05, 56, ECF No.
10-25.)

2

without written order on the findings of the trial court. (“Action
Taken,” ECF Nos. 10-11, 10-14, 10-17, 10-20 & 10-23.) This federal
habeas petition challenging the denial of his suppression motion
followed.
II. ISSUES
In five grounds, Petitioner claims (1) his sentences are
illegal

because

the

trial

court

found

only

one

enhancement

paragraph true; (2) and (3) his sentences are void because the
state presented “no evidence” at trial to support a finding of true
to the enhancement paragraph as required by § 12.42(d) of the Texas
Penal Code; (4) his Miranda rights were violated by Detective
Anderson’s failure to read the full “Miranda Warning” as required
by

article

38.22,

§

3(a)(2)

of

the

Texas

Code

of

Criminal

Procedure; and (5) his waiver of the Miranda rights was involuntary
because it was “the product of coercive and intimidating tactics
used by Detective Anderson.” (Pet. 6-7 & 10A, ECF No. 1.)
III. RULE 5 STATEMENT
Respondent

admits

that

the

petition

is

not

barred

by

successiveness or the statute of limitations and that Petitioner
has exhausted the claims in the state courts. (Resp’t’s Answer 3-4,
ECF No. 8.)

IV. DISCUSSION
3

Legal Standard for Granting Habeas Corpus Relief
A § 2254 habeas petition is governed by the heightened
standard of review provided for by the Anti-Terrorism and Effective
Death Penalty Act (AEDPA), 28 U.S.C. § 2254. Under the Act, a writ
of habeas corpus should be granted only if a state court arrives at
a decision that is contrary to or an unreasonable application of
clearly established federal law as determined by the United States
Supreme Court or a decision that is based on an unreasonable
determination of the facts in light of the record before the state
court. Harrington v. Richter, 562 U.S. 86, 100-01 (2011); see 28
U.S.C. § 2254(d)(1)–(2). This standard is difficult to meet but
“stops

short

of

imposing

a

complete

bar

on

federal

court

relitigation of claims already rejected in state proceedings.”
Harrington, 562 U.S. at 102.
Additionally, the statute requires that federal courts give
great deference to a state court’s factual findings. Hill v.
Johnson, 210 F.3d 481, 485 (5th Cir. 2000). Section 2254(e)(1)
provides that a determination of a factual issue made by a state
court shall be presumed to be correct. The petitioner has the
burden of rebutting the presumption of correctness by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell,
537 U.S. 322, 340 (2003); Williams v. Taylor, 529 U.S. 362, 399
(2000). Typically, when the Texas Court of Criminal Appeals denies
relief

in

a

state

habeas-corpus
4

application

without

written

opinion, it is an adjudication on the merits, which is entitled to
the presumption. Singleton v. Johnson, 178 F.3d 381, 384 (5th Cir.
1999); Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997).
Under these circumstances, a federal court may assume the state
court applied correct standards of federal law to the facts, unless
there is evidence that an incorrect standard was applied, and infer
fact

findings

consistent

with

the

state

court’s

disposition.

Townsend v. Sain, 372 U.S. 293, 314 (1963)3; Catalan v. Cockrell,
315 F.3d 491, 493 n.3 (5th Cir. 2002); Valdez v. Cockrell, 274 F.3d
941, 948 n.11 (5th Cir. 2001).
(1) Void Judgments
Under his first ground, Petitioner asserts that his sentences
are all void as excessive because the record and the trial court’s
judgments show that the trial court found only “one enhancement
paragraph” true. (Pet. 6, ECF No. 1.) The state trial court
rejected this claim and found that Petitioner’s sentences were not
excessive, and the Texas Court of Criminal Appeals denied habeas
relief based on the trial court’s findings.4
Petitioner

fails

to

demonstrate

that

the

state

courts’

adjudication of the claim is contrary to or an unreasonable
3

The standards of Townsend v. Sain have been incorporated into 28 U.S.C.
§ 2254(d). Harris v. Oliver, 645 F.2d 327, 330 n.2 (5th Cir. 1981).
4

(State Habeas R., WR-82,830-01, 52, ECF No. 10-13; State Habeas R., WR82,830-02, 52, ECF No. 10-16; State Habeas R., WR-82,830-03, 54, ECF No. 10-19;
State Habeas R., WR-82,830-04, 52, ECF No. 10-22; State Habeas R., WR-82,830-05,
54, ECF No. 10-25.)

5

application

of

federal

law

or

based

on

an

unreasonable

determination of the facts in light of the evidence. There was only
one enhancement paragraph in each indictment to which Petitioner
judicially confessed to be true and that the trial court found to
be

true.

Four

of

the

trial

court’s

judgments

reflect

that

Petitioner pleaded true to, and the trial court found to be true,
the “2nd Enhancement/Habitual Paragraph,” instead of the “1st
Enhancement Paragraph.” This defect appears to be purely clerical
or typographical error, and Petitioner cites to no federal law
holding that such error renders a judgment void. Further, under
state law, it is well established that a clerical or typographical
error in the entry of a judgment is subject to correction by a
judgment nunc pro tunc. Alvarez v. State, 605 S.W.2d 615, 617 (Tex.
Crim. App. 1980).
(2) and (3) No Evidence
Under his second and third grounds, Petitioner claims his
sentences are void because the state presented no evidence at trial
to

support

the

enhancement

paragraph

as

required

by

article

12.42(d) of the Texas Penal Code and due process. (Pet. 6, ECF No.
1.)
Whether a state prisoner’s sentences were properly enhanced is
generally a matter of state law and questioning that propriety fails
to present a meritorious basis for federal habeas relief. Rubio v.
Estelle, 689 F.2d 533, 536 (5th Cir. 1982); Donald v. Jones, 445
6

F.2d 601, 606 (5th Cir. 1971). Under state law, it is the state’s
burden to show that each previous felony conviction alleged is
final, that the second felony conviction is for an offense that
occurred subsequent to the previous felony conviction’s having
become final, and that the defendant was the person previously
convicted of the offenses. If, however, a defendant pleads “true”
to the enhancement paragraph, the state’s burden of proof is
satisfied. Harvey v. State, 611 S.W.2d 108, 112 (Tex. Crim. App.
1981); Dinn v. State, 570 S.W.2d 910, 915 (Tex. Crim. App. 1978).
Consequently, once Petitioner judicially confessed that “[a]ll
enhancement and habitual allegations set forth in the indictment are
true and correct,” the State was relieved of its burden to prove the
allegations.
(4) and (5) Miranda Warnings
Under his fourth and fifth grounds, Petitioner claims that his
Miranda rights were violated during the custodial interrogation
because Detective Anderson failed to read the “full” Miranda warning
as required by article 38.22 of the Texas Code of Criminal Procedure
and that his waiver of his rights was involuntary because it was the
product of coercive and intimidating tactics used by the detective.5

5

Respondent argues that Petitioner’s claims are barred by his knowing and
voluntary plea. It is well settled that a knowing, voluntary plea of guilty
waives all nonjurisdictional defects occurring before the plea. Mabry v. Johnson,
467 U.S. 504, 508 (1984); United States v. Smallwood, 920 F.2d 1231, 1240 (5th
Cir.), cert. denied, 501 U.S. 1238 (1991); United States v. Diaz, 733 F.2d 371,
376 (5th Cir. 1984); United States v. Brice, 565 F.2d 336, 337 (5th Cir. 1977).
And indeed, this rule extends to alleged constitutional violations. United States

7

(Pet. 7 & Attach., ECF No. 1.) Petitioner raised these claims on
direct appeal,6 and, in overruling the claims, the court of appeals
addressed them as follows:
FACTUAL AND PROCEDURAL BACKGROUND
Cotten was indicted in . . . [Case No. 1222336D for
forgery] in late 2010. While this case was pending, law
enforcement officers with the Fort Worth Police
Department and the United States Secret Service executed
a search warrant at Cotten’s residence in January 2011.
Cotten was asleep when officers burst into his bedroom.
After Cotten was placed in handcuffs, Detective Matthew
Anderson of the Fort Worth Police Department approached
him.
Detective Anderson informed Cotten that he was under
arrest for the unlawful possession of a firearm
discovered on his nightstand during the execution of the
warrant. Anderson then read aloud to Cotton from a
“MIRANDA WARNING” card printed by the Fort Worth Police
Department. Immediately thereafter, Anderson stated,
“[w]e’re just here talking and want to find out where the
stuff is so we don’t have to tear even more stuff up” and
asked Cotten if he “mind[ed] talking to [them] and
pointing [them] in directions?” Cotten replied “[n]o
problem at all” and signed the warning card. During the
interview with Detective Anderson—who was joined by
Secret Service Agents Holloway and Maguire in asking
questions—Cotten admitted his involvement in several
crimes. Cotten was subsequently transported to the police
station for further questioning.
At the police station, Cotten was placed in an
interview room. Approximately six minutes later and
before any questioning had commenced, the following
exchange occurred between Detective Anderson—who was

v. Broce, 488 U.S. 563 (1989); Tollett v. Henderson, 411 U.S. 258 (1973).
However, because Petitioner was permitted by the state court to appeal the merits
of his Miranda claims on direct appeal, that bar does not prevent this Court from
reviewing the merits of the claims. Lefkowitz v. Newsome, 420 U.S. 283, 293
(1975).
6
Petitioner appealed all five of the trial court’s judgments in separate
companion cases raising the same issues.

8

joined by Agent Holloway in the room—and Cotten:
[DETECTIVE ANDERSON]: Real quick right before
I start with you, this is, again, your Miranda
warning we read to you, correct?
[COTTEN]: Yes, sir.
[DETECTIVE ANDERSON]: To talk to us again, just
to keep talking so we can talk to you about
some other stuff, I just need you to write the
new time there, um 11:50 am, and if you still
wish to talk to us, just kinda put an initial
right there and then just put the date on top
of it, just, 1/12/11 cause this is just
continuing the same conversation we started today.
[COTTEN]: Okay.
Cotten initialed the form. During the interview, Cotten
further incriminated himself.
Cotten moved to suppress his two statements. The
trial court heard the motion and, after listening to
testimony and considering the parties’ arguments, denied
the motion. Later that day, Cotton entered an open plea
of guilty and judicially confessed, but retained his
right to appeal the trial court’s ruling on his motion to
suppress.
STANDARD OF REVIEW
In reviewing a trial judge’s ruling on a motion to
suppress a suspect’s oral statement, we apply a
bifurcated standard of review. Gonzales v. State, 369
S.W.3d 851, 854 (Tex. Crim. App. 2012); Guzman v. State,
955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We give almost
total deference to a trial judge’s determination of
historical facts when supported by the record and to
rulings on mixed questions of law and fact if the
resolution of those ultimate questions turns on an
evaluation of credibility and demeanor. Gonzales, 369
S.W.3d at 854; Guzman, 955 S.W.2d at 89. But when the
resolution of a mixed question of law and fact do not
depend on evaluation of credibility and demeanor, we
apply a de novo standard of review to the trial court’s
ruling. Gonzales, 369 S.W.3d at 854; Guzman, 955 S.W.2d
9

at 89.
FIRST STATEMENT
In his first and second issues, Cotten contends that
the trial court erred in failing to suppress his first
statement
because
its
procurement
violated
his
constitutional rights under Miranda v. Arizona and
statutory rights under Article 38.22 of the Texas Code of
Criminal Procedure.
Adequacy of Miranda Warnings
Cotten first challenges the adequacy of the Miranda
warnings administered to him. Cotten does not argue that
Detective Anderson did not provide him with all the
warnings required by Miranda and Article 38.22. Instead,
he asserts that Detective Anderson’s failure to read
aloud to him the following “waiver” provision from the
“MIRANDA
WARNING”
card
rendered
his
statement
inadmissible under “both Miranda and Art. 38.22[:]”
I HAVE READ AND UNDERSTAND MY LEGAL RIGHTS AS
STATED ABOVE ON THIS DOCUMENT. I FREELY,
VOLUNTARILY AND KNOWINGLY WAIVE THESE LEGAL
RIGHTS, AND AGREE TO BE INTERVIEWED BY POLICE.
We disagree.
As acknowledged by Cotten, neither Miranda nor
Article 32.22 requires that before a suspect is
questioned, he be given a “waiver” warning like the one
identified above. See TEX. CODE CRIM. PROC. ANN. art. 38.22,
§ 2(a)(l)-(5) (West Supp. 2013); Miranda, 384 U.S. at
479, 86 S. Ct. at 1630. Nevertheless, Cotten asserts that
Detective Anderson should have read the “waiver”
provision aloud to him to guarantee that he knowingly,
intelligently, and voluntarily waived his constitutional
and statutory rights. Cotten, however, cites no
authority—and
we
have
found
none—supporting
his
assertion. Indeed, Cotten’s assertion runs contrary to
the general rules that neither a written nor an oral
express waiver is required and that waiver can be
inferred and need not be express. Joseph v. State, 309
S.W.3d 20, 24 and n.5 (Tex. Crim. App. 2010). In
addition,
by
signing
the
warning
card,
Cotten
acknowledged having received the requisite warnings from
Detective Anderson. Accordingly, Cotten has failed to
10

demonstrate that the trial court erred in denying his
motion to suppress on the basis that the “waiver”
provision was not read aloud to him.
. . .
Waiver of Miranda Rights
Cotten next argues that his apparent waiver of his
constitutional and statutory rights was, in reality,
neither voluntary nor knowing and intelligent. He
complains that he was intimidated into making his
inculpatory statements, coerced into waiving his rights,
and incapacitated when the warnings were read to him. We
disagree.
A. Applicable Law
The State bears the burden of showing by a
preponderance of the evidence that a suspect voluntarily,
knowingly, and intelligently waived his rights under
Miranda and Article 38.22. Joseph, 309 S.W.3d at 24.
“[T]he relinquishment of the right must have been
voluntary in the sense that it was the product of a free
and deliberate choice rather than intimidation, coercion,
or deception.” Id. at 25. Additionally, “the waiver must
have been made with full awareness of both the nature of
the right being abandoned and the consequences of the
decision to abandon it.” Id. In making a determination as
to waiver, “the totality of the circumstances surrounding
the interrogation” must be considered. Id. (internal
quotation marks omitted).
B. Discussion
The totality of the circumstances surrounding
Cotten’s interrogation establishes that his waiver was
voluntary. That is, Cotten’s waiver resulted from a free
and deliberate choice without intimidation, coercion, or
deception. Detective Anderson orally advised Cotten of
his rights. Those warnings informed Cotten that he had
the right to remain silent, that he did not have to make
any statement to anyone, and that he had the right to
terminate the interview at any time. Immediately after
receiving these warnings, Cotten willingly participated
in the remainder of the thirteen-minute interview. At no
time during the interview did Cotten ask that it be
11

stopped. In fact, Cotten answered all of the questions
asked of him. That Cotten did so calmly and matter-offactly suggests that he provided the information
voluntarily.
Furthermore, the record shows no evidence of
intimidation or coercion. Cotten contends that he was
intimidated by Detective Anderson’s threat to tear his
home apart and coerced by Detective Anderson’s “rapid
fire interrogatory techniques coupled with the fact that
[he] was barely awake . . . .” The test, however, is
whether Cotten’s will was “overborne” by Detective
Anderson’s conduct. Guardiola v. State, 20 S.W.3d 216,
223 (Tex. App.-Houston [14th Dist.] 2000, pet. ref’d).
Detective Anderson testified that he did not threaten
Cotten, and Cotten does not point to anything substantive
in the record establishing a causal connection between
Anderson’s statements and his decision to confess.
Indeed, the lack of intimidation and coercion is evident
during the interview. As was noted above, Cotten
responded that he had “[n]o problem at all” speaking to
Detective Anderson and then did so without reservation.
The totality of the circumstances surrounding
Cotten’s interrogation also shows that his waiver was
made with full awareness of both the nature of the rights
being abandoned and the consequences of the decision to
abandon them. At the start of the interview, Detective
Anderson asked Cotten a series of identifying questions.
Then Anderson read the warning card aloud to Cotten,
making him fully aware of the rights set forth in Miranda
and Article 38.22, as well as the consequences of
abandoning those rights. Miranda, 384 U.S. at 444, 86 S.
Ct. at 1612; Tex. Code Crim. Proc. Ann. art. 38.22, § 2.
Cotten signed the warning card, thereby ostensibly
acknowledging those warnings and indicating that he
understood them. Cotten’s conduct during the interview
likewise demonstrated that he had the requisite level of
comprehension to waive his constitutional and statutory
rights.
Although
Cotten
can
be
heard
yawning
intermittently during the interview, it is obvious that
he was alert, appeared to comprehend the warnings and the
questions propounded to him, and was coherent and
appropriate in his responses.
Cotten maintains that “[his] mental state was
diminished [when] Detective Anderson read the warnings to
him” because “[h]e was not fully awake.” Cotten, however,
12

presented no evidence from an expert establishing that
when the Miranda warnings were administered to him, his
capacity to pay attention and make informed decisions
based on the information that was being imparted to him
was impaired. Cotten did testify at the suppression
hearing that he “was dazed from sleep” and that when
Detective Anderson began talking to him, he “wasn’t clear
on exactly what was going on.” But Cotten also testified
that when police burst through his bedroom door
“screaming and yelling and . . . pointing guns at [him,]”
he “wasn’t asleep anymore . . . .” As the sole trier of
fact and judge of credibility, the trial court was free
to believe or disbelieve all or any of Cotten’s
testimony, even if uncontroverted. State v. Ross, 32
S.W.3d 853, 855 (Tex. Crim. App. 2000). Based on the
evidence before it, the trial court was well within its
purview to conclude that Cotten was awake and alert when
the Miranda warnings were administered to him.
Cotten has failed to demonstrate that the trial
court erred in denying his motion to suppress on the
basis that the State did not satisfy its burden by a
preponderance of the evidence to establish that he waived
his constitutional and statutory rights voluntarily,
knowingly, and intelligently.
. . .
SECOND STATEMENT
In his third and final issue, Cotten argues that the
trial court erred in failing to suppress his second
statement because the warnings required by Miranda and
Article 38.22 were not read to him again before he was
questioned at the police station. We disagree.
Applicable Law
In a situation in which a suspect is warned about
his Miranda rights, a break in the questioning occurs,
and questioning resumes without new Miranda warnings, the
Miranda warnings administered in the first interview
remain effective as to admissions made during the second
interview if, in the totality of the circumstances, the
second interview is essentially a continuation of the
first. Bible v. State, 162 S.W.3d 234, 241–42 (Tex. Crim.
App. 2005); Jones v. State, 119 S.W.3d 766, 773 n.13, 795
(Keller, P.J. concurring) (Tex. Crim. App.2003), cert.
13

denied, 542 U.S. 905, 124 S. Ct. 2836, 159 L.Ed.2d 270
(2004); Ex Parte Bagley, 509 S.W.2d 332, 337–38 (Tex.
Crim. App. 1974); Franks v. State, 712 S.W.2d 858, 860–61
(Tex. App.-Houston [1st Dist.] 1986, pet. ref’d). In
determining
whether
Miranda
warnings
previously
administered remain effective in a subsequent interview,
we consider: (1) the passage of time; (2) whether the
interviews are conducted by different people; (3) whether
the interviews relate to different offenses; and (4)
whether the suspect is asked during the second interview
if he received the warnings earlier, if he remembers the
warnings, and if he wishes to invoke his rights. Bible,
162 S.W.3d at 242; Jones, 119 S.W.3d at 773 n.13.
Discussion
Under the totality of the circumstances, the two
sessions of questioning were essentially a single
interview for the purposes of Miranda and Article 38.22;
therefore, the Miranda warnings administered during
Cotten’s first interview were still effective during his
second interview. Cotten’s second session of questioning
began approximately two hours after his first session of
questioning began. Although each session took place at
different
locations,
the
same
law
enforcement
officer—Detective Anderson—administered the warnings and
led the questioning in both sessions, and both sessions
focused on the same set of crimes—counterfeiting and
forgery. Moreover, before any questioning began at the
second session, Detective Anderson obtained Cotten’s
acknowledgment that he had previously been given warnings
and Cotten’s assent to continue the “conversation [they]
started today.”
Cotten argues that the second session “was a
separate and independent interrogation” because “[t]he
location changed dramatically” and “[t]he individuals
present had changed dramatically.” He is mistaken.
Although each session took place at different locations,
the second one occurred within two hours of the first
one, concerned the same subject, and began with Cotten
acknowledging
the
Miranda
warnings
he
received
previously.
And
though
Cotten
asserts
that
the
individuals at the second session were dramatically
different than those at the first one, two of the three
law enforcement officials involved in the first
session—Detective Anderson and Agent Holloway—were
involved in the second one.
14

Cotten has failed to show that the trial court erred
in denying his motion to suppress on the basis that he
was not given the warnings required by Miranda and
Article 38.22 before being questioned at the police
station.
. . .
(Op. 1-9, ECF No. 10-7 (Footnotes omitted).)
Petitioner
determination

has
was

failed

to

show

contrary

to

or

that

the

involved

state

an

court’s

unreasonable

application of federal law or was an unreasonable determination of
the facts based on the evidence in the record. See Schneckloth v.
Bustamonte, 412 U.S. 218, 226 (1973) (the due-process test takes
into

consideration

“the

totality

of

all

the

surrounding

circumstances–both the characteristics of the accused and the detail
of the interrogation”). Miranda requires that a person taken into
custody be given preinterrogation warnings that he has the right to
remain silent, that anything he says may be used against him, and
that he has a right to retained or appointed counsel before
submitting to interrogation. Miranda v. Arizona, 384 U.S. 436, 44445 (1966). These safeguards are codified in article 38.22, § 3(a)
of the Texas Code of Criminal Procedure, which prohibits the
admission of an oral statement made by a defendant as a result of
custodial interrogation unless: (1) an electronic recording is made
of the statement; (2) the accused is advised of his Miranda rights
and voluntarily waives such rights; (3) the recording device was
capable of making an accurate recording, the operator was competent,

15

and the recording is accurate and has not been altered; and (4) all
voices on the recording are identified. TEX. R. CRIM. PROC. ANN. art.
38.22, § 3(a) (Vernon Supp. 2014). A suspect may waive his Miranda
rights so long as the waiver is made voluntarily, knowingly, and
intelligently. Miranda, 384 U.S. at 444.
Having independently reviewed the record, this Court is in
accord

with

the

state

court’s

analysis

and

findings

that

Petitioner’s statements were taken in compliance with Miranda and
the Texas Rules of Criminal Procedure. The Court finds no Supreme
Court precedent that the police were required to read aloud the
waiver provision in the “MIRANDA WARNING” signed by Petitioner
acknowledging his understanding and voluntary and knowing waiver of
his rights. Nor does the Court find Supreme Court precedent that the
police are required to reread a defendant his Miranda rights
following every break in the interrogation. See United States v.
Weekley, 130 F.3d 747, 751 (6th Cir. 1997) (one-hour interval
between

warnings

and

interrogation

did

not

render

confession

involuntary); United States ex rel. Patton v. Thieret, 791 F.2d 543,
547-48 (7th Cir.) (warnings did not need to be reread after forty
minute lapse), cert. denied, 479 U.S. 888 (1986); Evans v. McCotter,
790 F.2d 1232, 1237-38 (5th Cir.) (rights voluntarily waived where
suspect was twice warned over a three-hour period notwithstanding
change of interview locations), cert. denied, 479 U.S. 922 (1986);
Stumes v. Solem, 752 F.2d 317, 320 (8th Cir.) (five-hour interval
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between first and second interviews did not invalidate suspect’s
waiver given before the first interview), cert. denied, 471 U.S.
1067 (1985); Jarrell v. Balkcom, 735 F.2d 1242, 1254 (11th Cir.
1984) (change in interrogators and three-hour lapse did not render
confession inadmissible); United States ex rel. Henne v. Fike, 563
F.2d 809, 814 (7th Cir. 1977) (nine hours between warnings and
waiver not too long), cert. denied, 434 U.S. 1072 (1978); United
States v. Anthony, 474 F.2d 770, 773 (5th Cir. 1973) (“[T]here is
no requirement that an accused be continually reminded of his rights
once he has intelligently waived them[.]”).
For the reasons discussed, the Court DENIES Petitioner’s
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
and DENIES a certificate of appealability.
SIGNED January 11, 2017.

____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE

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